Section 31 of the Maritime Transport Act 1994 provides that the master of a ship must notify Maritime New Zealand, the national maritime safety authority, as soon as is practicable when the ship is involved in an accident or incident. Failure to do so amounts to an offence under the act. The issue for the Court of Appeal in Maritime New Zealand v Birchall [2009] NZCA 119 was the meaning of the term 'master' for the purpose of Section 31 of the act. 

Facts

The ferry Santa Regina was involved in an incident in the Cook Strait. Mr Hoedemaeckers was employed on board as the master. The ship's manuals set out the master's responsibilities, which included responsibility for safe navigation, safety and overall maintenance, seaworthiness and the entire management of the ship. Since the ship was operated almost continuously, Hoedemaekers would occasionally pass the navigational command of the ship to the first mate in order to rest. Birchall was employed on board as first mate. The ship's manual provided a procedure for passing command from the master to the first mate (or relief master). Among other things, the procedure gave the master the authority to resume command at any time. The manual also recorded the first mate's responsibilities, which included the safe navigation of the vessel during the watch. Birchall was navigating the ship when the incident occurred. He did not report the incident to Maritime New Zealand until four days later. 

Birchall was charged - as the master - with failing to notify Maritime New Zealand of the incident as soon as was practicable. He was found guilty of the offence in the district court and appealed to the High Court. 

High Court Decision

The High Court granted Birchall's appeal on the basis that the prosecution had not established an essential element of the charge - namely, that he was the master. 

Section 2 of the act defines the term 'master' as "any person (except a pilot) having command or charge of a ship". 

The court held that for the purpose of Section 31, there can be only one master at any given time. It then had to decide who had been the master of the ship at the time of the incident. It decided that Hoedemaeckers was the master. This decision was largely based on the responsibilities outlined in the ship's manuals. Particular reliance was placed on the fact that the master's transfer of command was always subject to the master's authority to resume command at any time and was not a total transfer. Thus, the master remained responsible for the navigation of the ship even when he was not on the bridge. 

Maritime New Zealand appealed, although without seeking the reinstatement of Birchall's conviction. 

Court of Appeal Decision

The Court of Appeal disagreed with the High Court and found that Birchall was the master for the purposes of Section 31. 

The Court of Appeal primarily based its decision on the statutory definition of the term 'master' in Section 2. In particular, it interpreted "any person" as applying to the person who fulfilled the qualifications of master at the time in question, rather than requiring a single person to be the master of the ship at all times. The court held that "having command or charge" in the definition should be read disjunctively. Thus, 'having command' or 'having charge' focused on the person having the functions of command or being in charge at the relevant time; they did not relate to the rank of another person who theoretically could have taken command or charge, but did not do so.

The court concluded on the facts that Birchall had command of the ship, as he had made an entry in the deck log to that effect when he took over Hoedemaeckers's position on the bridge. Even though Hoedemaeckers could have retaken command from Birchall at any time, he had not done so and Birchall had been in command at the time of the incident. Birchall was also found to have had charge of the ship, as he had had the con, had overridden the autopilot and had undertaken manual steering at the time of the incident.

Comment

The Court of Appeal considered that the definition of 'master' in the act does not require a single person to be the master of the vessel at all times. Instead, it held that the definition applies to the person who fulfils the criteria of the definition at a particular time. However, the court seems to have proceeded on the basis that the master's obligation (ie, to report an incident under Section 31) can reside only in one person at a time. Having decided that the words 'having command or charge of the ship' in the definition of 'master' in Section 2 must be read disjunctively, and that Birchall fulfilled both parts of the definition (as he was in command and in charge of the vessel), the court left open the question of who would be the master if one person on board were in charge while another held command. 

The obligation under Section 31 to notify Maritime New Zealand applies to masters of New Zealand ships, but also to masters of foreign ships in New Zealand waters. The act imposes numerous duties on masters of New Zealand ships and foreign ships in New Zealand waters (eg, rendering assistance to persons in danger of being lost at sea and reporting dangers to navigation to ships in the vicinity). A master's failure to fulfil these duties amounts to an offence.